Contaminated Education? Toxic Schools and the Leasing Loophole

From 1999 to 2002, Katie Acton’s daughter attended PS 65 in Ozone Park, Queens, a school built on land that formerly contained an airplane parts factory. Though there is no history of respiratory disorders in the family, Acton’s daughter developed asthma, while at PS 65. Other students and teachers at PS 65 also developed asthma, nausea, fatigue, persistent headaches, facial paralysis and cancer.
In 2002, parents at PS 65 found out that the land the school was built on contained Trichloroethylene or TCE. TCE is a colorless liquid used as a solvent for cleaning metal parts, that according to the Agency for Toxic Substances and Disease Registry, “may cause nervous system effects, liver and lung damage, abnormal heartbeat, coma, and possibly death.” Acton believes that the toxins her daughter was exposed to at school affected her breathing and ability to learn. She also believes that the Department of Education was aware of the toxin issues at PS 65 but never informed students’ families.

PS 65 is not the only school in New York City—or in Queens for that matter—that has been built on a contaminated site. Nor is PS 65 the only school in the city that has been found to leach hazardous chemicals that affect its students and faculty. Schools built on contaminated sites can be found throughout New York. Harlem’s PS 141 sits where a dry cleaning plant once stood. The city spent millions converting the property into a school but was forced to close it in 1997 when it became apparent that the site continued to expose students to chemical fumes. The Soundview Educational Complex in the Bronx was built on a site that once belonged to a defense manufacturer. In the 1990s, 4,000 pounds per year of hazardous waste were produced at this site. Recent tests on the Soundview Education Complex showed levels of lead and mercury between 10 and over 25,000 times the New York State standards. PS/MS 31 and PS 56 in the Bronx’s Mott Haven neighborhood are adjacent to two contaminated properties, a former railroad depot and coal tar processing plant. In September 2007, the Information Technology High School in Long Island City, built on a former factory, was found to pose a toxic threat to its students and faculty. In addition, there have been contamination concerns at Manhattan’s Beacon High School.

Building schools on toxic sites places students and the adults who work there at risk. Students and faculty at the Mott Haven schools have complained of asthma, headaches, respiratory problems and rashes. There have been cases of cancer and pregnancy complications. In a 2002 Epoch Times article, Mayra Reillo, a pre-K teacher at the school said that she was “scared every day” about the toxic threat due to the former depot and processing plant’s proximity to the school. Worrying that she and her students may breathe in contaminated air, she did not “dare to open the windows.”

Contaminated school sites pose serious problems because they directly affect developing children and because they may be in low-income communities that are already overburdened by environmental pollution. The Healthy Schools Network, Inc., an environmental health organization, notes that children are particularly susceptible to toxins in their environment: “Children eat, breathe and drink more per pound of body weight than adults and engage in hand to mouth behaviors that create an elevated risk of exposure to toxic chemicals that can be found on or near contaminated land.” We Act for Environmental Justice, an environmental and social justice organization, points out that contaminated schools “is of particular concern in urban communities given the potential effects of exposing children to additional contaminants—as many are already exposed to high levels of other toxins like diesel exhaust and pesticides.”
Though the agency tasked with building and leasing new schools throughout the city, the School Construction Authority (SCA), does test for contamination and cleanup leased school sites, they do not have to notify community or New York City Council members when they plan to lease a school, and leased school properties are not subject to the State Environmental Quality Review Act (SEQRA). As a result, community members and the City Council often have little influence in the selection of the leased site for a school, or the site’s cleanup. In 2006, Mary McKinney, chair of the Concerned Residents organization, told Metro NY that she felt something was wrong with the property where the Soundview school was to be built because it emitted “different odors” than the land surrounding it. However, the community was not aware that a school was going to be built until residents saw construction workers arriving on the site. “The community was never notified,” McKinney says.

Front of P.S. 65.

The process of erecting a school on leased land is different from the process for building schools on purchased land. If a site is purchased to build a school, the SCA must submit a site plan to both the community and the city council. Further, all new construction is subject to SEQRA, which includes a review of the environmental impacts that buildings will have on a site. SEQRA also provides another opportunity for the community affected by the construction to weigh in on the proposed project.
Many advocates feel that the different processes for building schools on leased and purchased sites creates different standards of protection for students attending public schools. David Solano of the Chancellor’s Parent Advisory Council states, “We should not have different levels of protection for kids facing the same risks.” In his memo in support of State legislation, Neil S. Calman of the Institute for Family Health at Yeshiva University’s Albert Einstein College of Medicine writes, “surely, the health of children attending schools on leased-property is no less precious than the health of children attending other newly constructed sites.”

The origin of what critics refer to as the “leasing loophole” is a 1994 ruling in Park South v. Board of Education of the City of New York. This court ruling allowed the Board of Education to build a school on a site despite a community’s opposition and despite the political process governing the Public Authorities Law (PAL). The BOE wanted to lease a building on the West Side of Manhattan in order to relieve overcrowding in an East Harlem school. However, the community argued that the SCA needed to submit a site plan and the City Council needed to approve the project, pursuant to the PAL. The court ruled against the community, maintaining that the city’s leasing program was not subject to the community participation or the PAL’s political approval process. Further, in the SCA’s Reply Memorandum, the SCA determined that although leasing a site does change the uses of a property, it does not have an effect on “traffic, utilities, or the aesthetics of the community,” and thus, a comprehensive environmental review of a leased site is not required. As Ross Holden, general counsel to the SCA, noted to the New York Observer, “we’ve just been following what case law said,” with regards to schools continuing to be built on non-reviewed leased property.

Mary McKinney in front of the Soundview School in the Bronx.

A bill sponsored by Queens Assemblywoman Catherine Nolan (Democrat), whose district was home to the contaminated Information Technology High School, attempts to fix the leasing loophole. Nolan’s bill would make the process for leasing a school site the same as the process for building a new school. The bill gives notice to residents and the City Council about leased sites proposed for school construction and makes these sites subject to SEQRA. Assemblywoman Nolan’s bill passed the State Assembly in April of this year and its companion bill, sponsored by Democratic State Senator John Sabini from Queens, is currently in the Senate’s Corporations, Authorities and Commissions Committee. State Senator Frank Padavan has also introduced a bill to address the school siting problem. Padavan’s bill is currently on the Senate floor, though not yet scheduled for a vote. Its counterpart bill in the Assembly, introduced by Assemblyman Keith Wright (Democrat, Harlem), is in the Assembly Education Committee, and has not yet been scheduled for a vote. In Padavan’s bill, a proposed leasing site would be subject to an environmental review using the American Society of Testing and Materials’ guidelines. If the site is found to need remediation, a public comment period would occur, and at least one public hearing would be required on remediation plans for the site.

Though not all leased schools sites are on or near contaminated properties, the process of leasing school sites raises serious concerns. Thirteen schools have opened on leased land since 2004; five more were planned in the past year, and fifteen more are expected by 2010. The nonprofit organization New York Lawyers for the Public Interest notes that the DOE’s five-year capital plan includes leasing 35 sites across the five boroughs. “Not in My Schoolyard: Avoiding Environmental Hazards at School Through Improved School Site Selection Policies,” a 2006 report for the U.S. Environmental Protection Agency by Rhode Island Legal Services states that “no federal and very few state guidelines or criteria exist for where to locate schools or how to avoid environmental health risks to children and staff.” With legislation attempting to correct the leasing loophole still pending in the State’s Assembly and Senate, New York may be finally on its way to do right by its students and faculty.

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